When Bad Attorneys Get Caught (Don't Hold Your Breath)

On Monday night Phillip Mortilla, 37, of Wilton Manors, was seriously injured when a southbound car turned into the path of his motorcycle. Mortilla was thrown about 30 feet by the impact and suffered severe head injuries. He is in critical condition at Holy Cross Hospital in Fort Lauderdale.

When Louis Weinstein read that one-paragraph account of Mortilla's January 28, 1991, accident in the Fort Lauderdale Sun-Sentinel, something clicked. As an attorney whose entire practice revolves around personal injury cases, he realized that Phillip Mortilla's pain and suffering could be the answer to his prayers. Weinstein's law practice was in jeopardy because of a dearth of clients, and the one-third fee he could gain in a settlement-rich case like Mortilla's might tide him over a rough period.

For three weeks Mortilla lay comatose, but near the end of February he had regained consciousness. His condition, however, remained serious. He was partially paralyzed, unable to walk, and had limited control over his motor reflexes. He had to be strapped to his bed or wheelchair so he wouldn't fall out. He was often disoriented and incapable of conversation. And his injuries caused him to suffer from an imagined but insatiable hunger that led Mortilla to force large quantities of food into his mouth, to the point that he would be in danger of choking. As a result he was not permitted to eat or drink without supervision.

Weinstein knew none of this when he tried to slip quietly into Mortilla's hospital room. Judith Overman, a nurse on Mortilla's floor, was the first to notice Weinstein. "He seemed to be lost and looking for the room," Overman would recall later in a sworn statement. "He was a little disheveled." She had no idea who he was and when she saw him enter Mortilla's room, she followed him.

Overman found Weinstein sitting beside Mortilla, questioning him as to whether he was wearing a helmet at the time of the accident. Weinstein also had with him a briefcase with forms he hoped Mortilla would sign, retaining Weinstein as his attorney. Overman interrupted Weinstein's questioning and asked what he was doing. She claims Weinstein responded that he was Mortilla's attorney. Unsure if attorneys were allowed to visit Mortilla, Overman went to the nurses' station and checked Mortilla's visitor card. It stated that the patient's attorney was permitted to visit, but it did not identify the attorney by name. Still suspicious, Overman went back to Mortilla's room and found Weinstein feeding Mortilla from a tray of cookies.

Overman ordered Weinstein to stop and when she was sure Mortilla was okay, she left to call Mortilla's brother. The call wasn't necessary as the brother had just arrived at the hospital. "I asked him who he was," recalled Paul Mortilla, a Broward firefighter, "and he said, 'A friend.'" In a sworn statement, Paul Mortilla said the attorney initially refused to identify himself or explain why he was in Phillip's room. "Several times I asked him who he was or who he represented and I didn't get any answer," Paul Mortilla contended. "Finally I just said, 'Get the hell out of the room. Let's go outside.'"

When Mortilla discovered Weinstein was an attorney, his attention immediately turned to the Manila envelope Weinstein was carrying. Mortilla demanded to see the papers inside, fearful that his brother might have signed some type of agreement. He quickly went through the papers and found that although they were prepared for his brother to sign, no signature appeared on any. After Mortilla returned the Manila folder and told the attorney to leave his brother alone, Weinstein promptly left the hospital.

On the face of it, the incident represents an outrageous example of "solicitation," and it illustrates one of the principal reasons the solicitation of clients for attorneys is a felony in the State of Florida: It is considered a gross invasion of a family's privacy.

But the case of Louis Weinstein -- a case in which virtually none of the facts are in dispute and in which Weinstein readily admits going to the hospital with the intention of signing up Mortilla as a client -- also demonstrates how time-consuming and complex is the process by which an attorney is criminally prosecuted or administratively punished for the offense.

After the family reported the incident to police and the local office of the Florida Bar, the Weinstein case took two separate tracks. Because the incident occurred in Fort Lauderdale, it was up to the Broward State Attorney's Office to investigate and prosecute any potential criminal charges.

In addition to criminal charges, an attorney accused of misconduct such as solicitation also faces sanctions by his peers. And if the offense is grievous enough, the Florida Bar can petition the state Supreme Court to suspend or permanently ban an attorney from the practice of law. In an attempt to police its own ranks and instill public confidence in the nearly 41,000 attorneys in the state, the Florida Bar has established a long list of procedures to guide investigations of professional malfeasance. The process, however, can take years, and those delays can discourage victims from following through with complaints.

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